No. 35923 (Repeal and Reenact): Rule R307-202. Emission Standards: General Burning

(Repeal and Reenact)

DAR File No.: 35923
Filed: 03/08/2012 08:44:01 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

Rule R307-202 was submitted to the Environmental Protection Agency (EPA) as part of Utah's 1999 PM10 State Implementation Plan (SIP). EPA is required under consent decree to take action on this rule by 06/14/2012. EPA has reviewed the rule and concluded that it cannot approve the rule as currently written and has requested that the rule be amended.

Summary of the rule or change:

This rulemaking is being done as a repeal and reenactment because the proposed reenacted rule has been significantly reorganized from the current rule. Section R307-202-1 is divided into two sections; Sections R307-202-2 and R307-202-3 are removed completely; and a section titled, General Requirements has been added to the reenacted rule. Substantive changes in the proposed reenacted rule include the following: in this rule, local fire authorities may establish a 30-day open burning window for northern counties between March 30th and May 30th, while in southern counties, the 30-day window may be established between March 1st and May 30th to accommodate the earlier spring season. In the fall, if approved by the state forester, the fire authorities may establish a 30-day open burning window between September 15th and October 30th in northern counties, and between September 15th and November 15th in southern counties to accommodate their extended growing season. Open burning permits are not valid during periods when the clearing index is below 500 or when publicly announced air pollution emergencies or alerts have been declared in the area of the proposed burn. The rule identifies county or municipal fire authorities as the individuals who will make determinations as to whether onsite burning of materials posing threats to public health require burning in place. The rule also requires that permits must be filed on a DAQ-approved form. Nothing in this rule would permit open burning that would result in the exceedance of a national ambient air quality standard.

State statutory or constitutional authorization for this rule:

• Section 19-2-104
• Section 65A-8-211
• Section 76-10-803
• Subsection 11-7-1(2)(a)

Anticipated cost or savings to:

the state budget:

There are no anticipated costs or savings to the state budget as there will be no additional costs to administer the new rule.

local governments:

The repeal and reenactment of Rule R307-202 will not affect the costs or savings to local governments, as similar provisions in the reenactment of the rule already exist in the current rule.

small businesses:

As this rule expands burning windows for some counties, there may be some small costs or savings for small businesses who burn in those counties; however, it is difficult to estimate what those costs or savings would be.

persons other than small businesses, businesses, or local governmental entities:

As this rule expands burning windows for some counties, there may be some small costs or savings for those individuals burning in those counties; however, it is difficult to estimate what those costs or savings would be.

Compliance costs for affected persons:

There may be minimal compliance costs for affected persons; however, it is difficult to estimate what those costs would be.

Comments by the department head on the fiscal impact the rule may have on businesses:

Any changes in the costs or benefits for businesses from the changes in this rule will be minimal.

Amanda Smith, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Environmental Quality
Air QualityRoom Fourth Floor
195 N 1950 W
SALT LAKE CITY, UT 84116-3085

Direct questions regarding this rule to:

• Mark Berger at the above address, by phone at 801-536-4000, by FAX at 801-536-0085, or by Internet E-mail at [e-mail]

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/01/2012

Interested persons may attend a public hearing regarding this rule:

• 04/17/2012 09:00 AM, MSOB, 195 N 1950 W, Salt Lake City, UT

This rule may become effective on:

06/06/2012

Authorized by:

Bryce Bird, Director

RULE TEXT

R307. Environmental Quality, Air Quality.

R307-202. Emission Standards: General Burning.

[ R307-202-1. Definitions and Exclusions.

As provided in Section 19-2-114, the provisions of R307-202 are not applicable to:

(1) burning incident to horticultural or agricultural operations of:

(a) prunings from trees, bushes, and plants; or

(b) dead or diseased trees, bushes, and plants, including stubble;

(2) burning of weed growth along ditch banks incident to clearing these ditches for irrigation purposes;

(3) controlled heating of orchards or other crops to lessen the chances of their being frozen so long as the emissions from this heating do not violate minimum standards set by the board; and

(4) the controlled burning of not more than two structures per year by an organized and operating fire department for the purpose of training fire service personnel when the United States Weather Service clearing index is above 500.

See also Section 11-7-1(2)(a).

 

R307-202-2. Community Waste Disposal.

No open burning shall be done at sites used for disposal of community trash, garbage and other wastes except as authorized through a variance or as authorized for a specific period of time by the Board on the basis of justifiable circumstances reviewed and weighed in terms of pollution effects and other relevant considerations at an appropriate hearing following written application.

 

R307-202-3. General Prohibitions.

No person shall burn any trash, garbage or other wastes, or shall conduct any salvage operation by open burning except in conformity with the provisions of R307-202-4 and 5.

 

R307-202-4. Permissible Burning - Without Permit.

When not prohibited by other laws or by other officials having jurisdiction and provided that a nuisance as defined in Section 76-10-803 is not created, the following types of open burning are permissible without the necessity of securing a permit:

(1) in devices for the primary purpose of preparing food such as outdoor grills and fireplaces;

(2) campfires and fires used solely for recreational purposes where such fires are under control of a responsible person;

(3) in indoor fireplaces and residential solid fuel burning devices except as provided in R307-302-2;

(4) properly operated industrial flares for combustion of flammable gases; and

(5) burning, on the premises, of combustible household wastes generated by occupants of dwellings of four family units or less in those areas only where no public or duly licensed disposal service is available.

 

R307-202-5. Permissible Burning - With Permit.

(1) Open burning is authorized by the issuance of a permit as specified in (3) below when not prohibited by other laws or other officials having jurisdiction, and when a nuisance as defined in Section 76-10-803 is not created.

(2) Individual permits for the types of burning listed in (3) below may be issued by an authorized local authority under the "clearing index" system approved and coordinated by the Department of Environmental Quality.

(3) Types of burning for which a permit may be granted are:

(a) open burning of tree cuttings and slash in forest areas where the cuttings accrue from pulping, lumbering, and similar operations, but excluding waste from sawmill operations such as sawdust and scrap lumber;

(b) open burning of trees and brush within railroad rights-of-way provided that dirt is removed from stumps before burning, and that tires, oil more dense than #2 fuel oil or other materials which can cause severe air pollution are not used to start fires or keep fires burning;

(c) open burning of solid or liquid fuels or structures for removal of hazards or eyesores;

(d) open burning, in remote areas, of highly explosive or other hazardous materials, for which there is no other known practical method of disposal;

(e) open burning of clippings, bushes, plants and prunings from trees incident to property clean-up activities provided that the following conditions have been met:

(i) in any area of the state, the local county fire marshal has established a 30 day period between March 1 and May 30 for such burning to occur and notified the executive secretary of the open burning period prior to the commencement of the 30 day period, or, in areas which are located outside of Salt Lake, Davis, Weber, and Utah Counties, the local county fire marshal has established, if allowed by the state forester under Section 65A-8-211, a 30 day period between September 15 and October 30 for such burning to occur and has notified the executive secretary of the opening burning period prior to the commencement of the 30 day period;

(ii) such burning occurs during the period established by the local county fire marshal;

(iii) materials to be burned are thoroughly dry;

(iv) no trash, rubbish, tires, or oil are used to start fires or included in the material to be burned.

(4) The Board may grant a permit for types of open burning not specified in (3) above on written application if the Board finds that the burning is not inconsistent with the State Implementation Plan.

 

R307-202-6. Special Conditions.

Open burning for special purposes, or under unusual or emergency circumstances, may be approved by the executive secretary.]

R307-202. Emission Standards: General Burning.

R307-202-1. Definitions.

(1) "Attainment areas" means any area that meets the national primary and secondary ambient air quality standard (NAAQS) for the pollutant.

(2) "County or municipal fire authority"means the public official so designated with the responsibility, authority, and training to protect people, property, and the environment from fire, within their respective area of jurisdiction.

(3) " Federal Class I Area " means an area that consists of national parks exceeding 6,000 acres, wilderness areas and national memorial parks exceeding 5,000 acres, and all international parks that were in existence on August 7, 1977. See Clean Air Act section 162(a) .

(4) " Fire hazard " means a hazardous condition involving combustible, flammable, or explosive material that represents a substantial threat to life or property if not immediately abated, as declared by the county or municipal fire authority.

 

R307-202-2. Exclusions.

As provided in Section 19-2-114, the provisions of R307-202 are not applicable to:

(1) Horticultural or agricultural operations of:

(a) Prunings from trees, bushes, and plants;

(b) Dead or diseased trees, bushes, and plants, including stubble;

(2) Weed growth along ditch banks for clearing these ditches for irrigation purposes;

(3) Controlled heating of orchards or other crops during the frost season to lessen the chances of their being frozen so long as the emissions from this heating do not cause or contribute to an exceedance of any national ambient air quality standards and is consistent with the federally approved State Implementation Plan; and

(4) The controlled burning of not more than two structures per year by an organized and operating fire department for the purpose of training fire service personnel when the National Weather Service clearing index is above 500.

See also Section 11-7-1(2)(a).

 

R307-202-3. Community Waste Disposal.

No open burning shall be done at sites used for disposal of community trash, garbage and other wastes.

 

R307-202-4. General Requirements.

(1) Except as otherwise provided in this rule, no person shall set or use an open outdoor fire for the purpose of disposal or burning of petroleum wastes; demolition or construction debris; residential rubbish; garbage or vegetation; tires; tar; trees; wood waste; other combustible or flammable solid, liquid or gaseous waste; or for metal salvage or burning of motor vehicle bodies.

(2) The county or municipal fire authority shall approve burning based on the predicted meteorological conditions and whether the emissions would impact the health and welfare of the public, or cause or contribute to an exceedance of any national ambient air quality standard.

(3) Nothing in this regulation shall be construed as relieving any person conducting open burning from meeting the requirements of any applicable federal, state or local requirements concerning disposal of any combustible materials.

(4) The county or municipal fire authority that approves any open burning permit will retain a copy of each permit issued for one year.

 

R307-202-5. Open Burning - Without Permit.

The following types of open burning do not require a permit when not prohibited by other local, state or federal laws and regulations, when it does not create a nuisance, as defined in Section 76-10-803, and does not impact the health and welfare of the public.

(1) Devices for the primary purpose of preparing food such as outdoor grills and fireplaces;

(2) Campfires and fires used solely for recreational purposes where such fires are under control of a responsible person and the combustible material is clean, dry wood or charcoal;

(3) Indoor fireplaces and residential solid fuel burning devices except as provided in R307-302-2.

 

R307-202-6. Open Burning - With Permit.

(1) No person shall knowingly conduct open burning unless the open burning activities may be conducted without a permit pursuant to R307-202-5 or the person has a valid permit for burning on a specified date or period, issued by the c ounty or municipal fire authority having jurisdiction in the area where the open burning will take place.

(2) A permit applicant shall provide information as requested by the c ounty or municipal fire authority. No permit or authorization shall be deemed valid unless the issuing authority determines that the applicant has provided the required information.

(3) Persons seeking an open burning permit shall submit to the c ounty or municipal fire authority an application on a form provided by the executive secretary for each separate burn.

(4) A permit shall be valid only on the lands specified on the permit.

(5) No material shall be burned unless it is clearly described and quantified as material to be burned on a valid permit.

(6) No burning shall be conducted contrary to the conditions specified on the permit.

(7) Any permit issued by a c ounty or municipal fire authority shall be subject to the local, state, and federal rules and regulations.

(8) Open burning is authorized by the issuance of a permit, as stipulated within this rule, for specification in (10) below. These permits can only be issued when not prohibited by other local, state or federal laws and regulations and when a nuisance as defined in Section 76-10-803 is not created, and does not impact the health and welfare of the public.

(9) Individual permits, as stipulated within this rule, for the types of burning listed in (10) below may be issued by a c ounty or municipal fire authority when the clearing index is 500 or greater. When the clearing index is below 500 all permits issued for that day will be null and void until further notice from the c ounty or municipal fire authority. Additionally, anyone burning on the day when the clearing index is below 500 or is found to be violating any part of this rule shall be liable for a fine in accordance with R307-130.

(10) Types of open burning for which a permit may be granted are:

(a) Except in nonattainment and maintenance areas, open burning of tree cuttings and slash in forest areas where the cuttings accrue from pulping, lumbering, and similar operations, but excluding waste from sawmill operations such as sawdust and scrap lumber;

(b) Open burning of trees and brush within railroad rights-of-way provided that dirt is removed from stumps before burning, and that tires, oil more dense than #2 fuel oil, tar, or other materials which can cause severe air pollution are not present in the materials to be burned, and are not used to start fires or to keep fires burning;

(c) Open burning of a fire hazard that a county or municipal fire authority determines cannot be abated by any other viable option;

(d) Open burning of highly explosive materials when a county or municipal fire authority, law enforcement agency or governmental agency having jurisdiction determines that onsite burning or detonation in place is the only reasonably available method for safely disposing of the material;

(e) Open burning for the disposal of contraband in the possession of public law enforcement personnel provided they demonstrate to the county or municipal fire authority that open burning is the only reasonably available method for safely disposing of the material;

(f) Open burning of clippings, bushes, plants and prunings from trees incident to property clean-up activities provided that the following conditions have been met:

(i) Within only the counties of Washington, Kane, San Juan, Iron, Garfield, Beaver, Piute, Wayne, Grand and Emery:

(A) The county or municipal fire authority has established a 30-day period between March 1 and May 30 for such burning to occur and notified the executive secretary of the open burning period prior to the commencement of the 30-day period; or

(B) The county or municipal fire authority has established a 30-day period between September 15 and November 15 and notified the executive secretary of the open burn window and the state forester has approved the burning window under Section 65A-8-211.

(ii) In all other areas of the state:

(A) The county or municipal fire authority has established a 30-day period between March 30 and May 30 for such burning to occur and notified the executive secretary of the open burning period prior to the commencement of the 30-day period; or

(B) The county or municipal fire authority has established a 30-day period between September 15 and October 30 for such burning to occur and has notified the executive secretary of the open burning period prior to the commencement of the 30-day period and the state forester has approved the burning window under Section 65A-8-211.

(iii) Such burning occurs during the period(s) established by the county or municipal fire authority, in accordance with state and federal requirements;

(iv) Materials to be burned are thoroughly dry;

(v) No trash, rubbish, tires, or oil are included in the material to be burned, used to start fires, or used to keep fires burning.

(g) Except for nonattainment and maintenance areas, the executive secretary may grant a permit for types of open burning not specified in (3) above on written application if the executive secretary finds that the burning is consistent with the federally approved State Implementation Plan and does not cause or contribute to an exceedance of any national ambient air quality standards;

(i) This permit may be granted once the executive secretary has reviewed the written application with the requirements and criteria found within this rule at R307-202-6(2).

(ii) Open Burning Permit Criteria

(A) The executive secretary, c ounty or municipal fire authority shall consider the following factors in determining whether, and upon what conditions, to issue an open burning permit:

(I) The location and proximity of the proposed burning to any building, other structures, the public, and federal Class I areas that might be impacted by the smoke and emissions from the burn;

(II) Burning will only be conducted when the clearing index is 500 or above;

(III) Whether there is any practical alternative method for the disposal of the material to be burned; and

(B) Methods to minimize emissions and smoke impacts may include, but are not limited to:

(I) The use of clean auxiliary fuel;

(II) Drying the material prior to ignition; and

(III) Separation for alternative disposal of materials that produce higher levels of emissions and smoke during the combustion process.

(C) Open burning permits are not valid during periods when the clearing index is below 500 or publicly announced air pollution emergencies or alerts have been declared in the area of the proposed burn.

(D) For burns of piled material, all piles shall be reasonably dry and free of dirt.

(E) Open burns shall be supervised by a responsible person who shall notify the local fire department and have available, either on-site or by the local fire department, the means to suppress the burn if the fire does not comply with the terms and conditions of the permit.

(F) All open burning operations shall be subject to inspection by the executive secretary or county or municipal fire authority. The permittee shall maintain at the burn site the original or a copy of the permit that shall be made available without unreasonable delay to the inspector.

(G) If at any time the executive secretary or the c ounty or municipal fire authority granting the permit determines that the permittee has not complied with any term or condition of the permit, the permit is subject to partial or complete suspension, revocation or imposition of additional conditions. All burning activity subject to the permit shall be terminated immediately upon notice of suspension or revocation. In addition to suspension or revocation of the permit, the executive secretary or c ounty or municipal fire authority may take any other enforcement action authorized under state or local law.

 

R307-202-7. Special Conditions.

(1) Open burning for special purposes or under unusual or emergency circumstances may be approved by the executive secretary if it is consistent with the federally approved State Implementation Plan and does not cause or contribute to an exceedance of any national ambient air quality standards.

(a) This permit may be granted once the executive sectary has reviewed the written application with the requirements and criteria in R307-202-6.

 

KEY: air pollution, open burning, fire [marshal]authority

Date of Enactment or Last Substantive Amendment: [July 15, 1999]2012

Notice of Continuation: March 4, 2010

Authorizing, and Implemented or Interpreted Law: 19-2-104; 11-7-1(2)(a); 65A-8-211; 76-10-803

 

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